BILL NUMBER: SB 1865	CHAPTERED  09/28/00

	CHAPTER   805
	FILED WITH SECRETARY OF STATE   SEPTEMBER 28, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 28, 2000
	PASSED THE SENATE   AUGUST 30, 2000
	PASSED THE ASSEMBLY   AUGUST 28, 2000
	AMENDED IN ASSEMBLY   AUGUST 24, 2000
	AMENDED IN ASSEMBLY   AUGUST 18, 2000
	AMENDED IN ASSEMBLY   JULY 6, 2000
	AMENDED IN SENATE   JUNE 13, 2000
	AMENDED IN SENATE   MAY 26, 2000
	AMENDED IN SENATE   MAY 18, 2000
	AMENDED IN SENATE   MAY 2, 2000
	AMENDED IN SENATE   APRIL 5, 2000

INTRODUCED BY   Senator Perata
   (Coauthor:  Assembly Members Romero and Torlakson)

                        FEBRUARY 24, 2000

   An act to amend Sections 39153, 39675, 42400, 42400.1, 42400.2,
42400.3, 42402, 42402.1, 42402.2, and 42402.3 of, and to add Sections
42400.3.5, 42400.7, 42400.8, and 42402.4 to, the Health and Safety
Code, relating to air pollution.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1865, Perata.  Air pollution:  civil and criminal penalties.
   (1)  Existing law requires the State Air Resources Board, air
pollution control districts, and air quality management districts to
adopt regulations for classifying and enforcing minor violations, and
required the state board to report to the Legislature, on or before
January 1, 2000, on the implementation of the regulations.  Existing
law also provides for the repeal of these provisions on January 1,
2001.
   This bill would extend the date for repeal of those provisions to
January 1, 2006, and would require a report to the Legislature on
actions taken by the state board on or before January 1, 2005.  The
bill would impose a state-mandated local program by requiring air
pollution control districts and air quality management districts to
submit information to the state board for purposes of that report.
   (2) Existing law provides that any person who emits an air
contaminant that causes actual injury, detriment, nuisance, or
annoyance to a considerable number of people is guilty of a
misdemeanor and subject to a fine, imprisonment, and a civil penalty.

   This bill would increase the fine and the maximum time for
imprisonment for a violation that causes actual injury.
   (3) Existing law provides that any person who negligently emits an
air contaminant in violation of any rule, regulation, permit, or
order of the state board or a district pertaining to emissions, to be
subject to a fine, imprisonment, and a civil penalty.
   This bill would increase the maximum fine.
   This bill would also provide that any person who negligently emits
an air contaminant that causes injury, detriment, nuisance, or
annoyance to a considerable number of persons that also causes great
bodily injury, as defined, to, or death of, any person is guilty of a
misdemeanor and subject to a fine, imprisonment, and a civil
penalty.
   (4) Existing law provides that any person who emits an air
contaminant in violation of any rule, regulation, permit, or order of
the state board or a district pertaining to emissions, and who knew
of the emission and failed to correct the violation within a
reasonable period of time is subject to a fine, imprisonment, and a
civil penalty.
   This bill would increase the maximum fine and penalty.
   This bill would also provide that any person who owns or operates
any source of an air contaminant that causes injury, detriment,
nuisance, or annoyance to a considerable number of persons that also
causes great bodily injury, as defined, to, or death of, any person
and who knew of the emission and failed to take corrective action
within a reasonable time is guilty of a misdemeanor and subject to a
specified fine and penalty.
   (5) Existing law provides that any person who willfully and
intentionally emits an air contaminant in violation of any rule,
regulation, permit, or order of the state board or a district
pertaining to emissions is subject to a specified fine, imprisonment,
and penalty.
   This bill would expand that provision to include any person who
willfully and intentionally or with reckless disregard for the risk
of great bodily injury or death, emits an air contaminant that
results in great bodily injury or death.  This bill would also
increase the maximum allowable fine and civil penalty.  The bill
would also provide that any person who emits an air contaminant that
causes injury, detriment, nuisance, or annoyance to a considerable
number of persons, that results in any unreasonable risk of, or that
causes great bodily injury to, or death of, any person, and who does
so willfully, intentionally, or with reckless disregard for the risk
is guilty of a misdemeanor and subject to a specified fine and
penalty.
   This bill would also provide for a higher maximum allowable
penalty for corporate violators.
   (6) Existing law provides that the recovery of a civil penalty for
an air quality violation precludes criminal prosecution, and that
the filing of a criminal complaint requires the dismissal of any
civil action for the same offense.
   This bill would exempt from that requirement any portion of a
civil action requesting injunctive relief.
   (7) Existing law provides specified circumstances for a court to
consider in determining the amount of civil penalty to assess a
violator of specified air pollution provisions.
   This bill would require that a court consider the same
circumstances when considering the amount of criminal fine to impose
on a violator of specified air pollution provisions.
   (8) Existing law provides that any person who knowingly, and with
intent to deceive, falsifies any document required to be kept
pursuant to any rule, regulation, permit, or order of the state board
or a district pertaining to emissions is subject to a civil penalty.

   This bill would increase the maximum allowable civil penalty, and
would provide that the person is guilty of a misdemeanor and subject
to a fine and imprisonment.
   This bill would create additional crimes and would expand the
scope of existing crimes, thereby imposing state-mandated local
programs.
  (9) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 39153 of the Health and Safety Code is amended
to read:
   39153.  (a) On or before January 1,  2005, the state board shall
report to the Legislature on actions taken by the state board and the
districts to implement this chapter and the results of that
implementation.  Each district shall provide the state board with the
information that the state board requests to determine the degree to
which the purposes described in subdivision (a) of Section 39150
have been achieved.
  (b) This chapter shall remain in effect only until January 1, 2006,
and as of that date is repealed, unless a later enacted statute,
that is enacted on or before January 1, 2006, deletes or extends that
date.
  SEC. 2.  Section 39675 of the Health and Safety Code is amended to
read:
   39675.  (a) Sections 42400, 42400.1, 42400.2, and 42402.2 apply to
violations of regulations or orders adopted pursuant to Section
39659 or Article 4 (commencing with Section 39665) or that are
implemented and enforced as authorized by subdivision (b) of Section
39658.
   (b) The adoption of this section does not constitute a change in,
but is declaratory of, existing law.
  SEC. 3.  Section 42400 of the Health and Safety Code is amended to
read:
   42400.  (a) Except as otherwise provided in Section 42400.1,
42400.2, 42400.3, 42400.3.5, or 42400.4, any person who violates this
part, or any rule, regulation, permit, or order of the state board
or of a district, including a district hearing board, adopted
pursuant to Part 1 (commencing with Section 39000) to Part 4
(commencing with Section 41500), inclusive, is guilty of a
misdemeanor and is subject to a fine of not more than one thousand
dollars ($1,000) or imprisonment in the county jail for not more than
six months, or both.
   (b) If a violation under subdivision (a) with regard to the
failure to operate a vapor recovery system on a gasoline cargo tank
is directly caused by the actions of an employee under the
supervision of, or of any independent contractor working for, any
person subject to this part, the employee or independent contractor,
as the case may be, causing the violation is guilty of a misdemeanor
and is punishable as provided in subdivision (a).  That liability
shall not extend to the person employing the employee or retaining
the independent contractor, unless that person is separately guilty
of an action that violates this part.
   (c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes actual injury, as defined
in subdivision (d), to the health or safety of a considerable number
of persons or the public is guilty of a misdemeanor and is subject to
a fine of not more than fifteen thousand dollars ($15,000) or
imprisonment in the county jail for not more than nine months, or
both.
   (d) As used in this section, "actual injury" means any physical
injury that, in the opinion of a licensed physician and surgeon,
requires medical treatment involving more than a physical
examination.
   (e) Each day during any portion of which a violation of
subdivision (a) or (c) occurs is a separate offense.
  SEC. 4.  Section 42400.1 of the Health and Safety Code is amended
to read:
   42400.1.  (a) Any person who negligently emits an air contaminant
in violation of any provision of this part or any rule, regulation,
permit, or order of the state board or of a district pertaining to
emission regulations or limitations is guilty of a misdemeanor and is
subject to a fine of not more than twenty-five thousand dollars
($25,000) or imprisonment in the county jail for not more than nine
months, or both.
   (b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, is guilty of a misdemeanor and is subject to
a fine of not more than one hundred thousand dollars ($100,000) or
imprisonment in the county jail for not more than one year, or both.

   (c) Each day during any portion of which a violation occurs is a
separate offense.
  SEC. 5.  Section 42400.2 of the Health and Safety Code is amended
to read:
   42400.2.  (a) Any person who emits an air contaminant in violation
of any provision of this part, or any order, rule, regulation, or
permit of the state board or of a district pertaining to emission
regulations or limitations, and who knew of the emission and failed
to take corrective action within a reasonable period of time under
the circumstances, is guilty of a misdemeanor and is subject to a
fine of not  more than forty thousand dollars ($40,000) or
imprisonment in the county jail for not more than one year, or both.

   (b) For purposes of this section, "corrective action" means the
termination of the emission violation or the grant of a variance from
the applicable order, rule, regulation, or permit pursuant to
Article 2 (commencing with Section 42350).  If a district regulation
regarding process upsets or equipment breakdowns would allow
continued operation of equipment which is emitting air contaminants
in excess of allowable limits, compliance with that regulation is
deemed to be corrective action.
   (c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of the Penal Code, to,
or death of, any person, and who knew of the emission and failed to
take corrective action within a reasonable period of time under the
circumstances, is guilty of a misdemeanor and is subject to a fine of
not more than two hundred fifty thousand dollars ($250,000) or
imprisonment in the county jail for not more than one year, or both.

   (d) Each day during any portion of which a violation occurs
constitutes a separate offense.
  SEC. 6.  Section 42400.3 of the Health and Safety Code is amended
to read:
   42400.3.  (a) Any person who willfully and intentionally emits an
air contaminant in violation of any provision of this part or any
rule, regulation, permit, or order of the state board or of a
district, pertaining to emission regulations or limitations is guilty
of a misdemeanor and is subject to a fine of not more than
seventy-five thousand dollars ($75,000), or imprisonment in the
county jail for not more than one year, or both.
   (b) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to, or death
of, any person, emits an air contaminant in violation of Section
41700 that results in any unreasonable risk of great bodily injury
to, or death of, any person, is guilty of a public offense and is
subject to a fine of not more than one hundred twenty-five thousand
dollars ($125,000) or imprisonment in the county jail for not more
than one year, or both.  However, if the defendant is a corporation,
the maximum fine may be up to five hundred thousand dollars
($500,000).
   (c) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to, or death
of, any person, emits an air contaminant in violation of Section
41700 that causes great bodily injury to, or death of, any person is
guilty of a public offense, and is subject to a fine of not more than
two hundred fifty thousand dollars ($250,000) or imprisonment in the
county jail for not more than one year, or both, or is subject to a
fine of not more than two hundred fifty thousand dollars ($250,000)
or imprisonment in the state prison, or both.  If the defendant is a
corporation, the maximum fine may be up to one million dollars
($1,000,000).
   (d) Each day during any portion of which a violation occurs
constitutes a separate offense.
   (e) This section does not preclude punishment under Section 189 or
192 of the Penal Code or any other provision of law that provides a
more severe punishment.
   (f) For the purposes of this section:
   (1) "Great bodily injury" means great bodily injury as defined by
subdivision (e) of Section 12022.7 of the Penal Code.
   (2) "Imprisonment in state prison" means imprisonment in the state
prison for 16 months, or two or three years.
   (3) "Unreasonable risk of great bodily injury or death" means
substantial probability of great bodily injury or death.
  SEC. 7.  Section 42400.3.5 is added to the Health and Safety Code,
to read:
   42400.3.5.  (a) Any person who knowingly violates any rule,
regulation, permit, order, fee requirement, or filing requirement of
the state board or of a district, including a district hearing board,
that is adopted for the control of toxic air contaminants pursuant
to Part 1 (commencing with Section 39000) to Part 4 (commencing with
Section 41500), inclusive, and for which delegation or approval of
implementation and enforcement authority has been obtained pursuant
to subdivision (l) of Section 112 of the Clean Air Act (42 U.S.C.
Sec. 7412(l)), or the regulations adopted pursuant thereto, is guilty
of a misdemeanor and is subject to a fine of not more than ten
thousand dollars ($10,000) or imprisonment in the county jail for not
more than six months, or both.
   (b) Any person who knowingly makes any false material statement,
representation, or certification in any form or in any notice or
report required by a rule or regulation adopted or permit issued for
the control of toxic air contaminants pursuant to Part 1 (commencing
with Section 39000) to Part 4 (commencing with Section 41500),
inclusive, and for which delegation or approval of implementation and
enforcement authority has been obtained pursuant to subdivision (l)
of Section 112 of the Clean Air Act (42 U.S.C.  Sec. 7412(l)), or the
regulations adopted pursuant thereto, or who knowingly renders
inaccurate any monitoring device required by that toxic air
contaminant rule, regulation, or permit is subject to a fine of not
more than thirty-five thousand dollars ($35,000) or imprisonment in
the county jail for not more than nine months, or both.
   (c) Any person who, knowingly and with intent to deceive,
falsifies any document required to be kept pursuant to any provision
of this part, or any rule, regulation, permit, notice to comply, or
order of the state board or of a district, is punishable as provided
in subdivision (b).
   (d) Subdivisions (a) and (b) shall apply only to those violations
that are not otherwise subject to a fine of ten thousand dollars
($10,000) or more pursuant to Section 42400.1, 42400.2, or 42400.3.

  SEC. 8.  Section 42400.7 is added to the Health and Safety Code, to
read:
   42400.7.  (a) The recovery of civil penalties pursuant to Section
39674, 42401, 42402, 42402.1, 42402.2, 42402.3, or 42402.4 precludes
prosecution under Section 42400, 42400.1, 42400.2, 42400.3,
42400.3.5, or 42400.4 for the same offense.  When a district refers a
violation to a prosecuting agency, the filing of a criminal
complaint is grounds requiring the dismissal of any civil action
brought pursuant to this article for the same offense.
   (b) If the pending civil action described in subdivision (a)
includes a request for injunctive relief, that portion of the civil
action shall not be dismissed upon the filing of a criminal complaint
for the same offense.
  SEC. 9.  Section 42400.8 is added to the Health and Safety Code, to
read:
   42400.8.  In determining the amount of fine to impose pursuant to
Sections 42400, 42400.1, 42400.2, 42400.3, 42400.3.5, and 42400.4,
the court shall consider all relevant circumstances, including, but
not limited to, the following:
   (a) The extent of harm caused by the violation.
   (b) The nature and persistence of the violation.
   (c) The length of time over which the violation occurs.
   (d) The frequency of past violations.
   (e) The record of maintenance.
   (f) The unproven or innovative nature of the control equipment.
   (g) Any action taken by the person including the nature, extent,
and time of response of any cleanup and construction undertaken, to
mitigate the violation.
   (h) The financial burden on the defendant.
   (i) Any other circumstances the court deems relevant.
  SEC. 10.  Section 42402 of the Health and Safety Code is amended to
read:
   42402.  (a) Except as provided in Sections 42402.1, 42402.2,
42402.3, and 42402.4, any person who violates this part, any order
issued pursuant to Section 42316, or any rule, regulation, permit, or
order of a district, including a district hearing board, or of the
state board issued pursuant to Part 1 (commencing with Section 39000)
to Part 4 (commencing with Section 41500), inclusive, is strictly
liable for a civil penalty of not more than one thousand dollars
($1,000).
   (b) (1) Any person who violates any provision of this part, any
order issued pursuant to Section 42316, or any rule, regulation,
permit or order of a district, including a district hearing board, or
of the state board issued pursuant to Part 1 (commencing with
Section 39000) to Part 4 (commencing with Section 41500), inclusive,
is strictly liable for a civil penalty of not more than ten thousand
dollars ($10,000).
   (2) (A) If a civil penalty in excess of one thousand dollars
($1,000) for each day in which a violation occurs is sought, there is
no liability under this subdivision if the person accused of the
violation alleges by affirmative defense and establishes that the
violation was caused by an act that was not the result of intentional
nor negligent conduct.
   (B) Subparagraph (A) shall not apply to a violation of federally
enforceable requirements that occur at a Title V source in a district
in which a Title V permit program has been fully approved.
   (C) Subparagraph (A) does not apply to a person who is determined
to have violated an annual facility emissions cap established
pursuant to a market based incentive program adopted by a district
pursuant to subdivision (b) of Section 39616.
   (c) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes actual injury, as defined
in subdivision (d) of Section 42400, to the health and safety of a
considerable number of persons or the public, is liable for a civil
penalty of not more than fifteen thousand dollars ($15,000).
   (d) Each day during any portion of which a violation occurs is a
separate offense.
  SEC. 11.  Section 42402.1 of the Health and Safety Code is amended
to read:
   42402.1.  (a) Any person who negligently emits an air contaminant
in violation of this part or any rule, regulation, permit, or order
of the state board or of a district, including a district hearing
board, pertaining to emission regulations or limitations is liable
for a civil penalty of not more than twenty-five thousand dollars
($25,000).
   (b) Any person who negligently emits an air contaminant in
violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of the Penal Code, to
any person or that causes the death of any person, is liable for a
civil penalty of not more than one hundred thousand dollars
($100,000).
   (c) Each day during any portion of which a violation occurs is a
separate offense.
  SEC. 12.  Section 42402.2 of the Health and Safety Code is amended
to read:
   42402.2.  (a) Any person who emits an air contaminant in violation
of any provision of this part, or any order, rule, regulation, or
permit of the state board or of a district, including a district
hearing board, pertaining to emission regulations or limitations, and
who knew of the emission and failed to take corrective action, as
defined in subdivision (b) of Section 42400.2, within a reasonable
period of time under the circumstances, is liable for a civil penalty
of not more  than forty thousand dollars ($40,000).
   (b) Any person who owns or operates any source of air contaminants
in violation of Section 41700 that causes great bodily injury, as
defined by subdivision (e) of Section 12022.7 of the Penal Code, to
any person or that causes the death of any person, and who knew of
the emission and failed to take corrective action, as defined in
subdivision (b) of Section 42400.2, within a reasonable period of
time under the circumstances, is liable for a civil penalty not to
exceed two hundred fifty thousand dollars ($250,000).
   (c) Each day during any portion of which a violation occurs is a
separate offense.
  SEC. 13.  Section 42402.3 of the Health and Safety Code is amended
to read:
   42402.3.  (a) Any person who willfully and intentionally emits an
air contaminant in violation of this part or any rule, regulation,
permit, or order of the state board, or of a district, including a
district hearing board, pertaining to emission regulations or
limitations, is liable for a civil penalty of not more than
seventy-five thousand dollars ($75,000).
   (b) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to, or death
of, any person, emits an air contaminant in violation of Section
41700 that results in an unreasonable risk of great bodily injury to,
or death of, any person, is liable for a civil penalty of not more
than one hundred twenty-five thousand dollars ($125,000).  If the
violator is a corporation, the maximum penalty may be up to five
hundred thousand dollars ($500,000).
   (c) Any person who willfully and intentionally, or with reckless
disregard for the risk of great bodily injury, as defined by
subdivision (e) of Section 12022.7 of the Penal Code, to, or death
of, any person, emits an air contaminant in violation of Section
41700 that causes great bodily injury, as defined by subdivision (e)
of Section 12022.7 of the Penal Code, to any person or that causes
the death of any person, is liable for a civil penalty of not more
than two hundred fifty thousand dollars ($250,000).  If the violator
is a corporation, the maximum penalty may be up to one million
dollars ($1,000,000).
   (d) Each day during any portion of which a violation occurs is a
separate offense.
  SEC. 14.  Section 42402.4 is added to the Health and Safety Code,
to read:
   42402.4.  Any person who knowingly and with intent to deceive,
falsifies any document required to be kept pursuant to any provision
of this part, or any rule, regulation, permit, or order of the state
board or of a district, including a district hearing board, is liable
for a civil penalty of not more than thirty-five thousand dollars
($35,000).
  SEC. 15.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
   However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
